December 8, 2014
28.4.621
Background
The grievor was notified that the grievor's position would no longer be required due to lack of work. The grievor submitted an application to alternate with another employee, who occupied Position A. The grievor was informed that the grievor did not meet the qualifications to alternate to Position A. On the same day, the grievor submitted a request to alternate to Position B. The grievor was informed that the grievor met the requirements for Position B and the alternation took place. The grievor is grieving the Department's decision to deny the grievor's alternation for Position A. The grievor is alleging that the Work Force Adjustment Directive (WFAD) was not applied appropriately; that the statement of merit was not indicative of the work being performed by the present incumbent and that the grievor was unfairly assessed.
Bargaining Agent Presentation
The grievor was one of five employees in the directorate. All five employees reported to the Director General, and three (including the grievor and the employee with whom the grievor wished to alternate) of the five had generic job descriptions. The generic job descriptions were adopted to facilitate the mobility of work amongst the employees. At the time that the generic job descriptions were adopted, the grievor and his colleagues were advised by management, that they were fit to perform the duties of all positions, including the position in question for alternation Position A.
The Department implemented work force adjustment measures. These measures included a reduction of employees in the region from five to two. The grievor and two other employees received a letter declaring them as opting employees. No Selection for Retention or Lay-Off (SERLO) process was initialized prior to the employees being declared as opting.
When the grievor had requested to alternate with Position A, the grievor was advised that the request was denied on the basis that the grievor did not have enough experience dealing with central agencies on matters of policy interpretation and implementation. The grievor was, however, advised that the grievor had met the educational requirements as well as all five experience requirements. The grievor also met six behavioral factors. The Bargaining Agent noted that the grievor had been in various positions with various responsibilities for approximately ten years. In this time, the grievor's performance evaluations had always been positive and did not identify areas of weakness that required improvements. The grievor's policy experience and communications skills were never brought forward as a source of concern or an area needing improvement.
It has been brought forward by way of signed affidavitsby employees in the work unit, that the manager had personality conflicts with the three opting employees, including the grievor. The manager had openly expressed and demonstrated his dislike of the grievor in the workplace. As such, the manager would not approve or facilitate an alternation between any of the opting employees and the position in question. Despite not having reviewed their credentials for the position, the manager stated that he deemed the opting employees unqualified for the Position A, and that he wished for the non-affected employee to take over position should it become vacant, a requesting even that the incumbent employee and the non-affected employee switch duties to render this possible. It was further alleged that the manager advised the incumbent of the position A that should the incumbent seek to alternate with the opting employees, he would ensure that the merit criteria would render this impossible.
The representative argued that the assessment tool, upon which the assessment was based, was flawed. The manager created an assessment tool for the incumbent's position; however he did not consult the incumbent in creating it. The assessment tool did not reflect the duties assigned during his tenure, nor the key activities of the work description. However, based on the assessment criteria, the incumbent himself would not have met the requirements to occupy his position.
Section 6.2.1 of the Directive requires that all departments and organizations participate in the alternation process. It is alleged that the Department failed to participate in the alternation process. The grievor recognizes that the Department performed several alternations. However, the grievor alleges that the Employer failed to participate in the grievor's specific alternation process. The intent of the Directive is that the Employer genuinely considers the specifics of each alternation request. In this case, management failed, refused or omitted to genuinely consider the grievor's request. Prior to the grievor even submitting a request for alternation or the grievor's qualifications being reviewed by the designated person, the person responsible for the assessment tool had advised the incumbent of the Position A that any alternation request with the opting employees would be denied. The Department had furthermore sought to transfer the duties of Position A to a previously selected employee and there was a known dislike of the grievor by the manager (who was consulted on the grievor's alternation request and who had created the alternation assessment tool).
Further to this, the criteria utilized to assess the grievor's alternation request did not reflect the actual duties or the key activities of the Position A job description. Section 6.2.4 of the Directive requires that an alternation result in the retention of the skills required to meet the ongoing needs of the position and the core public administration. Section 6.2.6 of the Directive requires that an opting employee must meet the requirements for appointment to the unaffected position(s). The Department denied the grievor's alternation on the basis that the grievor did not have the experience necessary for the position. However, the intent of the Directive is to retain as many public servants as possible while ensuring that the public service retains the necessary skills for its business.
The intent of the Directive was to ensure that the abilities required by the public service be preserved and not that the alternating employee have lived specific experiences. The Department's decision to deny the alternation focuses on the grievor's experiences rather than the grievor's abilities or skills. In assessing the grievor on the basis of the grievor's breadth experience, the Department failed to evaluate the grievor in accordance with the intent of the Directive in considering transferrable skills. The Directive requires that the grievor have the skills required of the position and not the experience. In dismissing the grievor request on the basis of his experience, rather than her skills, the Department failed to apply the ordinary meaning of the word "skill" and consequently, failed to properly adhere by the intent of the Directive.
The Employer sought to retain policy skills and communication skills. While the grievor did not live the same experiences as the incumbent of position A, the grievor had demonstrated an ability to perform policy duties and communication with central agencies in the grievor's own work experiences. The grievor's resume and successful performance evaluations confirm such.
The grievor was a qualified candidate for an alternation with the position in question. The grievor's opportunity to alternate was denied due to the Department's failure to properly apply the NJC WFAD. As such, the Bargaining Agent representative requested that the grievance be upheld and the corrective measures be applied.
Departmental Presentation
The Employer representative stated that the Department treated the grievor within the intent of the WFAD, as they did consider the alternation request put forward by the grievor. The assessment of the grievor was completed using a statement of merit (SoMC) that was developed using the Treasury Board Secretariat (TBS) Competencies. Following the assessment, which consisted of reference checks and a review of the grievor's resume, it was concluded that the grievor did not meet the requirements of the Position A, and as such the alternation request was declined. The grievor was supported in an ongoing search to maintain employment in the Public Service and an alternation request into another area within the Department was approved.
As required by Section 1.1.1 of the WFAD, the grievor was provided every opportunity to continue the grievor's career. This is evidenced by the fact that the grievor was assessed for the alternation for Position A and deemed a fit for an alternation for Position B.
The Department actively participated in the alternation program and considered all potential "matches" that were proposed, by conducting a fulsome and thorough assessment of each person who requested an alternation, as prescribed by Section 6.2.1 of the WFAD.
The Employer representative explained that the SoMC and its defining criteria, used when considering alternations into Position A, were derived from the TBS competencies. The Employer representative noted that the skills required to meet the ongoing needs of the position are established through the SoMC, which in this case, the manager created using the TBS Competency Profiles as is encouraged by TBS. Therefore, Management is provided the authority, as per Section 6.2.4, to ensure that skills are retained when considering alternation requests. In the case of the grievor, it was determined that one key skill would be missing if the alternation were approved.
Section 6.2.6 outlines that the opting employee moving into the unaffected position must meet the requirements for appointment to the position. Retraining does not apply to alternations. The opting employee must meet all the requirements established in the SoMC. In this case, after reviewing the submitted materials (Resume and Cover Letter) and conducting thorough reference checks with the grievor's three previous supervisors, it was determined that the grievor did not meet the Policy piece as it was defined. As such, alternation would not have resulted in the retention of skills required to meet the ongoing needs of the position.
In regards to the work descriptions, the grievor's substantive position was a manager position. The work description for this position came into effect in February 2011. The position reports to the Director.
The position the grievor wished to alternate with was Position A. The work description for this position came into effect in March 2012. Position A reports to the Director General.
Although the positions were created using generic work descriptions, they are not identical. The positions have separate ratings for "Nature of Impact" due to the different dollar amounts on their respective "Resources Susceptible to Influence" worksheets and their different reporting relationships.
The Employer representative noted that according to the jurisprudence (Public Service Alliance of Canada and Professional Institute of the Public Service of Canada vs Treasury Board of Canada (2013 PSLRB 37)), clause 35, under section 6.2.4, management decides "…whether a proposed alternation is likely to result in retention of the skills required to meet the ongoing needs of the position and the Core Public Administration." The obvious implication of this provision is that, if the proposed alternation is not likely to result in the retention of the requisite skills, management can block the intended alternation. The provision permits, first and foremost, a consideration of the suitability of the opting employee for the position into which he or she is proposing to move. However, it also gives management broad latitude to consider the "…ongoing needs of the positions and the Core Public Administration."
In conclusion, the Employer representative argued that the Department acted in good faith and within the intent of the Workforce Adjustment Directive when it considered the grievor's request to alternate. The grievor did not meet the breadth of functional competencies required under the category of Policy as it relates to the current and future requirements of the position, and as such the alternation request could not be approved.
Executive Committee Decision
The Executive Committee considered the report of the Work Force Adjustment Committee and noted the impasse. The Executive Committee considered the information and circumstances in this grievance and agreed that the grievor had been treated within the intent of the Directive as the grievor had been assessed for a possible alternation into the position but did not to meet the essential requirements of the position. As such, the grievance is denied.